This article about the Catie Clobes v NBC lawsuit was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
On September 24, 2021, anti-vaccine activist Catelin (Catie) Clobes filed a lawsuit in federal district court in Minnesota against NBC and two of its journalists, Brandy Zadrozny and Aliza Nadi, alleging defamation, emotional distress [sic], and “reasonable care” [sic].
The review of Catie Clobes v NBC is quite long, so this article will be published in two parts, with the second one being available tomorrow.
Background of Catie Clobes v NBC
The claims were based on a 2019 article the two journalists wrote and NBC published on September 24, 2019, addressing how the anti-vaccine movement recruited Catie Clobes after her daughter’s tragic death. The lawsuit suffers from many problems, but I think the two major ones are:
- That it did not allege – let alone show – that NBC acted with the required mental state for defamation. In other words, the lawsuit did not show that the statements Ms. Clobes alleges are untrue were untrue as a result of either negligence or malice.
- The lawsuit’s suggests that Ms. Clobes, for whom the article shows two billboards about her daughter’s story and links to two public interviews she gave about her daughter’s death, is a private figure. Even on the face of the lawsuit – that mentions a billboard and social media activity – that’s problematic. As soon as a judge looks at the article, the claim won’t hold.
If the claim that Ms. Clobes is a private figure fails, as is likely, as a public figure, Ms. Clobes would have to show not only that the NBC claims were untrue, but that NBC acted with “actual malice” – a legal term of art that means that NBC knew what they were publishing was untrue or acted with “reckless disregard” – i.e. intentionally ignored evidence that what they’re saying is false. This is a high bar and hard to meet.
In addition, the lawsuit has many inaccurate statements and extensive irrelevant content. It also undermines itself in several places, for example, by alleging that many of the statements in the article were “opinion” – but a statement of opinion is not defamation (see below).
Two reminders. First, I have been following this case from early on. I have written about Ms. Clobes’ tragedy before, and I have had some interaction with her that was more than a little adversarial and unfriendly. Ms. Clobes is, understandably, upset and angry at the pushback her story received.
I will say openly that I think, given that Ms. Clobes’ story was used to scare other parents from vaccinating their children, correcting it is both appropriate and important. And the NBC article – which I consider to be well-founded, carefully researched, and thoughtful – did important public service in setting out the facts.
But I do realize that having these facts publicly exposed caused Ms. Clobes substantial distress. I expect this one will, too, but I think that the immunity community needs this information and that when you are stepping into anti-vaccine activism, you cannot expect to stand uncorrected.
Second, I am not a litigator; I am a legal academic. I teach defamation as part of a general torts class, but I do not have the in-depth expertise of a defamation expert or the familiarity with civil procedure of a professor of civil procedure or practitioner. I have tried to address that by drawing on the expertise of those who do have that.
I do think I’m more familiar with Ms. Clobes’ story and activities than most defamation lawyers.
Because the core of the lawsuit is the defamation claim (the other claims are not argued in any meaningful way), the bulk of this post will focus on that.
What is defamation?
Our defamation law combines rules developed through case law by courts, statutes in some states, though none apply to this lawsuit, and limits taken from the First Amendment, as interpreted by our courts. As summarized by the Digital Media Law Project,
Defamation is the general term for a legal claim involving injury to one’s reputation caused by a false statement of fact and includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful statements that harm another’s reputation will not create liability for defamation…
To show defamation, a plaintiff needs to show:
- The defendant published a statement about the plaintiff. It’s enough to show it to one other person.
- The statement is false. If the issue is a matter of public concern – and vaccines and the anti-vaccine movement are easily matter of public concern – it is up to the plaintiff to show the statement was false. This is crucial. Defamation focuses on false statements of fact. They need to be false, and they need to be statements of fact. As Popehat explains, “it’s not illegal to be biased or “unfair” in a philosophical sense. Only false statements of fact can be defamatory. Arguments, characterizations, insults, and aspersions can’t be, unless they are premised on explicit or implied false statements of fact.”
True statements are not defamatory. The statement does not have to be perfectly accurate, but needs to be substantially true – so minor details being wrong would not make a statement defamatory.
- The statement was published with the appropriate level of fault. At a minimum, under our defamation law, a plaintiff has to show the defendant acted negligently. If plaintiff is some kind of public figure (see below) plaintiff has to show actual malice. That means that the plaintiff “must show that the statement was false and that the defendant either knew it was false or recklessly disregarded whether or not it was false. “Reckless disregard” means something like deliberately ignoring manifest signs that the statement was false.” Yes, I’m repeating this because it’s important.
- Plaintiff has to show there’s no applicable privilege, but that doesn’t really come up in this case.
- The statement harmed the reputation of the plaintiff. In most cases, plaintiff would have to show the statement caused actual damages, though there are some exceptions where damage may be presumed.
This is what the plaintiff has to show. Note that a defamation lawsuit is not asking “did the journalist meet journalism ethics,” “was the article slanted”, or “did the journalist say insulting things.” Some of this may come up in assessing, say, punitive damages, but these are not the elements the plaintiff needs to show. I am mentioning this caveat because large sections of the complaint are devoted to these things.
The complaint reads strangely. It does not set out the legal case in detail. The bulk of the lawsuit appears to be quotes from a declaration by Robert J. Fisher, including statements like “It is my expert opinion” (paragraph 17) and “Based on my educational and professional background in journalism, it is my opinion..” (paragraph 6). Mr. Robert J. Fisher is presented on his website as “an experienced expert witness… [who] has expertise in all communications fields and related areas (e.g. defamation, …)”.
Expert witnesses have an important role in many cases, but their role is distinct from that of the lawyer that sets out the legal aspects of the complaint. A complaint should not read as an expert report (especially one that is out of date, since it claims the Medical Examiner is under investigation – although the investigation of Ms. Clobes’ complaints against the medical examiner ended with no discipline and no action in July 2021).
As it is, the complaint has too many details that are not really relevant to the case (e.g. claim that the journalists did not meet ethical standards or a detailed discussion of how he thinks the article is slanted) and glaring omissions in what should have been addressed (i.e., the elements).
Catie Clobes v NBC Lawsuit
There are at least two elements that Ms. Clobes, in my view, can meet. First, she can meet the “published about the plaintiff” element. The NBC public article was clearly published and clearly focused on Catie Clobes.
Second, I think she can establish that the article harmed her reputation. This may be a little closer, but she can probably show that the article exposed her “to hatred, ridicule or contempt,” and that it “lowers [her] in the esteem of [her] peers, causes [her] to be shunned.”
However careful the article was, it suggested that the cause of her daughter’s death was unsafe sleep, and some would certainly blame the parent for it. (Personally, I think that many reasonable, caring parents have made the mistake of putting a child in unsafe sleep conditions).
The problem for Catie Clobes’ lawsuit against NBC lies elsewhere.
First, Ms. Clobes’ lawsuit never even alleges either negligence or actual malice. A lawsuit has to cover all the elements of a tort, and this can easily lead to a motion to dismiss for not alleging an element. This deficit will not necessarily be fatal; Ms. Clobes may be given a chance to amend her complaint to plead these elements. But it will at least delay her case.
Additionally, she is unlikely to be able to show that Ms. Zadrozny or NBC acted out of malice or negligence since the article drew heavily on official sources and public statements and actions.
In her complaint, Ms. Clobes alleges that she is not a public figure. The relevant category for Ms. Clobes would be a limited public figure since it can be strongly argued that Ms. Clobes thrust herself “to the forefront of particular controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch Inc., 418 U.S. 323 (U.S. 1974).
Ms. Clobes’ claim that she is a private figure incorrect on the face of the complaint and the article and may well be rejected at summary judgment before full discovery. The complaint claims that Ms. Clobes “never thrust herself to the forefront of any public controversy to influence any sort of resolution involved” and suggests that her public role was limited to the one Facebook post about her daughter’s death.
The complaint claims that she “had some profile on social media and her focus was on trying to determine the cause of her daughter’s death…She had no media exposure but put up one billboard in Minnesota which did not contain her name.”
Even on these facts, the claim that she is a private figure is problematic – the billboard in question may not have had her name, but it did have her daughter’s name. If you put up an anti-vaccine billboard featuring your daughter, you have publicly thrust yourself to the forefront of controversy in an attempt to influence the result.
But a quick look at the NBC article shows these facts are incomplete. The article has pictures of two billboards featuring Evee Clobes with the caption “Healthy Babies Don’t Just Die” and a link to the local anti-vaccine group, Health Choice Minnesota. The second billboard featured shows a baby’s legs with band-aids, clearly referring to vaccines.
The article also mentions and links to two public forums in which Ms. Clobes openly connected her daughter’s death to vaccines – an interview from March 2019 with the anti-vaccine group Stop Mandatory Vaccines, and her public appearance on the anti-vaccine online show The Highwire on September 13, 2019, before the article.
The NBC article, essentially, clearly set out Ms. Clobes’ very public presence. They could have gone further: there are a lot of occasions in which Ms. Clobes went public with her story and openly advocated against vaccines. In March 2019, Ms. Clobes had her story featured on Health Choice Minnesota, the group that helped her put up her first two billboards. In early September, Ms. Clobes was working to put up another billboard in California.
Ms. Clobes has posted a blog claiming that Evee had “warning signs” from the start after her vaccine – a blog post taking an anti-vaccine position and clearly aimed to influence other parents about vaccines – on September 4, 2019. In another public blog post from April 2019, Ms. Clobes argued that Evee could not withstand vaccines.
In a Facebook post from June 16, 2019, Ms. Clobes said:
My beautiful baby’s face getting recognized out in the world is exactly what I wanted. Especially so people ask who she is, so her story can be told! I’ve had literally hundreds of messages from mother’s [sic] telling me that Evee has changed their lives! I will never stop sharing my beauty with the world.
This is a pretty clear statement that Ms. Clobes is seeking to make her daughter’s story public and have it impact events in the world.
On July 21, 2019, in a Facebook post shared 172 times, Ms. Clobes stated that she
got her daughter vaccinated, and a day and a half later she died. No, this is not just a coincidence. … I’m loud, and blunt, and I will never stop sharing because when I see a baby or a little girl in public or on my newsfeed, my whole body clenches up with fear and my eyes fill with tears, maybe out of envy, and the image of my daughter’s smile comes into my head and I want so badly to scream at the parent “please keep your child safe because I couldn’t”.
Ms. Clobes is openly stating she is going to publicly advocate against vaccines, and she wants people not to vaccinate. We can understand her pain, but she cannot convincingly go public, advocate against vaccines, use her daughter’s death to support it, and claim she is not a limited public figure for the purpose of promoting her daughter’s death as a cautionary vaccine tale. She literally put her daughter’s death on a public billboard. She openly said she wanted her daughter’s story public and to make a difference. That makes her a public figure.
Her defamation expert’s claim that posting on social media and in anti-vaccine forums does not make her a public figure is highly problematic. Social media is public, and an increasingly important public forum today. As said in another context:
In 2010, the U.S. Supreme Court wrote, “Today, 30-second television ads may be the most effective way to convey a political message. … Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues.” Citizens United v. Fed. Election Comm’n, 130 S.Ct. 876, 890 (2010). The Court was, if anything, predicting what was already fact in 2010; but that aside, the Court was remarkable in recognizing the potential value of peer-to-peer communication.
Not only is Catie Clobes likely to be found to be a limited public figure for this purpose, but she also would have to show actual malice by NBC. Her complaint never alleges actual malice, and since the NBC article used official documents – the police report about Evee’s death and a letter from the Medical Examiner setting out the facts – she is unlikely to be able to demonstrate malice. Even in the incredibly unlikely scenario where she managed to show she was a private figure, she would still have to show negligence, and she neither alleges nor makes the case for it.
Note that malice here does not mean “the journalist is out to get me and is mean.” It is a legal term of art meaning that the journalist knew that her statements were fault, or intentionally ignored clear signs of that.
The sections of the complaint personally attacking journalist Brandy Zadrozny, therefore, are not going to help make her case. Several pages in the lawsuit are devoted to trying to argue that Ms. Zadrozny “is not a neutral, biased reporter,” based on defamation expert Mr. Fisher’s view that “[s]he is an activist for vaccinations and against the anti-vaccination movement.” (The complaint has this in quotation marks, citing Mr. Fisher’s declaration.)
To support this point, the complaint sites “social media posts by Defendant Zardozny that demonstrate her support for vaccination and her opposition to those opposing them.” But being pro-vaccine and opposed to the anti-vaccine movement is not defamation, nor would it show any hostility to Ms. Clobes as a person. It is not legally relevant.
A journalist reporting on the facts of vaccine science and also reporting on the facts of anti-vaccine agents of disinformation is hardly a point against that journalist. In fact, as Curtis Brainard pointed out in a 2013 Columbia Journalism Review article, sticking with the truth rather than reporting a balanced yet erroneous version of facts is ethical journalism.
Part 2 of this article can be found here.